STANDARD MASTER SERVICES AGREEMENT - Huge Connect

Transcription

STANDARD MASTER SERVICES AGREEMENTHUGE CONNECT (PTY) LIMITEDand herein referred to as “Huge Connect”1INTERPRETATION1.1In this Agreement the following expressions shall have the following meanings respectively:1.1.1“Agreement” - the terms and conditions as set out herein (“Master Services Agreement”),together with the Service Order(s) and any Service Schedule(s) attached hereto, in terms ofwhich Huge Connect will deliver the Service to Customer;1.1.2“Authorised Person” – any person in the employ of Customer and/or a person acting on behalfof the Customer who is authorised by the Customer to issue Service Orders to Huge Connect.The Customer may in writing notify Huge Connect of the person or designation who has beenauthorised by the Customer to issue Service Orders. In the absence of such notification by theCustomer, an employee or person acting on behalf of the Customer in the issuing of ServiceOrders, shall be deemed to be an Authorised Person.1.1.3“Billing Date” – the day on which billing for the Service shall commence, being the date ofinstallation or activation of the Service or such other date as agreed to between the Parties;1.1.4“Business Day” – a day not being a Saturday or Sunday or public holiday in the Republic ofSouth Africa;1.1.5“Business Hours” - hours that fall within 8 am and 5 pm on any Business Day;1.1.6“Charges” - the various charges for the Service, as specified in the Service Order(s) or in theapplicable Service Schedule(s) or as may be quoted or otherwise notified to Customer fromtime to time by Huge Connect;1.1.7“Consumable Parts” – means any cable, power supply and/or antenna in as far as theCustomer Premises Equipment is concerned.1.1.8“Contract Period” – the duration of the contractual period, in accordance with the tariff optionas indicated in the Service Order(s), from the Billing Date applicable to each Service;1.1.9“Customer” - the party who is named on the Service Order and/or Service Delivery document;1.1.10 “Customer Call Centre” - telephone support provided to Customers by Huge Connect staff orany duly authorised entity on behalf of Huge Connect;1.1.11 “Customer's Address of Request” - an address, within the Republic of South Africa or any otherarea agreed to in writing by Huge Connect, specified by Customer on the Service Order(s),where Customer requires the installation and/or delivery of the Devices;1.1.12 “Customer Premises Equipment” are defined in each Service Schedule.1.1.13 “Effective Date” - the date of last signature to this Agreement;

P a g e 21.1.14 “Huge Connect” - Huge Connect Proprietary Limited, Registration Number 2004/005721/07, acompany duly registered within the Republic of South Africa with principle place of businessat 267 West Building, 267 West Avenue Centurion 01571.1.15 “Party” - either Huge Connect or Customer, as the case may be;1.1.16 “RICA” - the Regulation of Interception of Communications and Provision of Communicationrelated Information Act No 70 of 2002;1.1.17 “Service” – where applicable, the relevant Customer Premises Equipment and/or servicesand/or combination thereof provided to Customer by Huge Connect under the terms andconditions of this Agreement and as detailed in Service Schedules and Service Orders;1.1.18 “Service Delivery” - the document, signed by a duly authorised representative of Customer,which forms part of this Agreement relating to the delivery, installation and/or provision ofServices to Customer;1.1.19 “Service Order” - the instruction containing an order by Customer for the provision of theService, which forms part of this Agreement. A Service Order specifies the type of Service andthe tariff option (which is linked to a contract period), which have been ordered by Customerand can be in the form of an completed Huge Connect Service Order document or aninstruction issued by an Authorised Person via e-mail, facsimile and/or telephonically;1.1.20 “Service Schedule” – the annexure(s) attached to the Master Services Agreement setting outthe terms and conditions applicable to the specific Services requested by Customer in termsof the Service Order(s);1.1.21 “3rd Party Service” – the services acquired by Huge Connect from upstream service providers(also referred to as third party service providers) and which is provided to Customer in itsoriginal form or in a repackaged, bundled or linked form as specified in the Service Schedule.1.1.22 “Uncontrollable Event” means (including without limitation) any event constituting forcemajeure as specified in Clause 13 of the Master Services Agreement including any other causebeyond the reasonable control of the 3rd Party Service provider and/or Huge Connectincluding the termination or suspension of a service or product provided by the 3rd PartyService provider, that may result in a delay or a failure to provide any service or product.1.2If any provision in the definitions Clause is a substantive provision conferring rights or imposingobligations on any party, notwithstanding that it is only in the definitions Clause, effect shall begiven to it as if it were a substantive provision of this Agreement.1.3All expressions contained in the body of this Agreement shall have the same meaning in all ofthe Service Schedules and/or addenda attached hereto from time to time.1.4The headings in this Agreement have been inserted for convenience only and shall not be takeninto account in its interpretation.1.5This Agreement shall, unless the context so requires, include any special terms and conditionsagreed in writing between Huge Connect and Customer.1.6Words importing the singular include the plural and vice versa.1.7Words importing a gender include any gender.Standard Master Services Agreement March 2018

P a g e 32COMPONENTS OF THIS AGREEMENT2.1The Service Schedule(s) as well as the Service Order(s) shall be deemed to be incorporatedherein, and shall form an integral part of this Agreement.2.2This Agreement shall operate as a severable and distinct agreement in respect of each ServiceSchedule and Service Order pertinent to the Services ordered by Customer from time to time,and any additional conditions in any such Service Schedule(s) and Service Orders contained shallbe deemed to be incorporated herein, and shall form part of this Agreement.2.3In case of any conflict, unless specifically otherwise provided for, the provisions of thisAgreement are to be read in the following order of precedence in relation to that conflict:2.3.1In respect of provisions detailing the Services:2.3.1.1The Service Schedule(s);2.3.1.2The Service Order(s);2.3.1.3This Master Services Agreement.2.3.2In respect of any other provisions:2.3.2.1This Master Services Agreement;2.3.2.2The Service Order(s)2.3.2.3The Service Schedule(s).2.43Huge Connect shall execute any Service Order communicated to it by an Authorised Person. .COMMENCEMENT AND DURATION3.1This Agreement shall commence on the Effective Date and endure indefinitely until terminatedby either Party giving not less than 1 (one) calendar month’s written notice, provided that suchnotice may not be given prior to the expiry of all the Contract Periods specified in ServiceOrder(s).3.2Notwithstanding Clause 3.1, Customer shall have the right to cancel any individual Serviceprovided such Service’s Contract Period, in terms of Service Order, has expired and providedCustomer gives at least one calendar month’s written notice of such Service termination to HugeConnect. For avoidance of doubt, should the Agreement be terminated in accordance withClause 3.1 above, then all Services under the Agreement shall be terminated simultaneously.3.3Notwithstanding Clause 3.1, Customer shall have the right to cancel any newly acquired Servicewithin 10 (ten) Business Days of such Service Delivery should Customer not be satisfied withsuch Service excluding any 3rd Party Service(s). However, Customer shall be liable for allapplicable charges and costs, including all charges that may have been waived by Huge Connect,up to and including the date of cancelation.4CREDIT VETTING4.1Customer hereby consents to:4.1.1Huge Connect performing credit searches/checks with one or more of the registered creditbureaus when assessing Customer’s application for services to be provided by Huge Connect.4.1.2Huge Connect monitoring and recording Customer’s continued payment behaviour byresearching their record at the mentioned registered credit bureaus and to use such newStandard Master Services Agreement March 2018

P a g e 4information and data obtained from registered credit bureaus in respect of Customer’s futureapplications for services.4.1.35Huge Connect recording the Customer’s payment behaviour and in case of continued defaultsby Customer, reporting such to registered credit bureaus.OBLIGATIONS5.1Huge Connect undertakes to provide the Service(s), as described in the relevant ServiceSchedule(s) and Service Order(s) beginning on the Effective Date and continuing for the durationof this Agreement as provided for in Clause 2.4 above.5.2Customer agrees to adhere to generally acceptable etiquette when utilizing any of HugeConnect's Services and be bound by Huge Connect's Acceptable Use Policy available on HugeConnect's website www.hugeconnect.co.za or any other instructions issued by Huge Connect atany time5.3Customer may not utilize any service in any manner which may compromise the security of HugeConnect or any 3rd Party Service provider’s service or network, or any other network connectedthereto, or tampers with a service or such a network in any manner whatsoever.5.4Customer undertakes not to and/or not to permit any other person to use the Services forpurposes not agreed to between the Parties. Customer agrees that they shall be liable to HugeConnect for any reasonable additional charges levied by Huge Connect in such instances.5.5Customer indemnifies Huge Connect against any claims, procedures and expenses arising fromany infringement of Clause 5.2, 5.3 and 5.4 of this Agreement.5.6Huge Connect is entitled to take whatever action Huge Connect may deem necessary andreasonable to preserve the security and reliability of its or any 3rd Party Service Provider’sservice or network.6CUSTOMER PREMISES EQUIPMENT – WARRANTY AND INSURANCE6.1The risk of damage to and loss of the Customer Premises Equipment shall pass to the Customerupon its installation and/or delivery to the Customer’s Address of Request and shall remain withthe Customer until the Customer Premises Equipment (not owned by Customer) are returned ingood and satisfactory order by the Customer to Huge Connect at its registered offices.6.2The Customer shall ensure that the Customer Premises Equipment, in the case where HugeConnect remains the owner, from the date of delivery/installation, is covered for its fullreplacement value, by a comprehensive all-risks insurance policy, in which the interest of HugeConnect or its designated subcontractor has been noted. Huge Connect shall provide theCustomer with the replacement value of the Customer Premises Equipment at the request ofthe Customer.6.3Huge Connect warrants that Customer Premises Equipment purchased by Customers shall for aperiod of 12 (twelve) calendar months from the date of delivery, be free from defects inmaterials and workmanship and fit for the purpose for which they are intended. ConsumableParts are excluded from the warranty.77.1BILLING AND PAYMENTThe billing in respect of the Service(s) shall commence on the Billing Date.Standard Master Services Agreement March 2018

P a g e 57.2Customer accepts that Huge Connect issues financial documents electronically and HugeConnect confirms that such electronically issued financial documents shall comply with theValue-Added Tax Act of 1991 as amended.7.3Customer is responsible for the payment of all Charges indicated on the account renderedwithout set-off or deduction.7.4All monies due to Huge Connect in accordance with this agreement shall be paid to HugeConnect via a debit order unless otherwise agreed between the parties.7.5The invoices and/or statements rendered by Huge Connect and/or any entity on behalf of HugeConnect and/or a certificate signed by any of Huge Connect’s managers, which manager’sappointment need not be proved, shall be prima facie proof in any court of law of Customer’sindebtedness towards Huge Connect and any other fact referred to therein, including, but notlimited to the recovery costs and the replacement cost of any equipment referred to in thisAgreement.7.6Huge Connect shall be entitled to charge interest if an account rendered to a Customer is notpaid on or before the due date, up to and including the date of payment at the prevailingmaximum interest rate prescribed in terms of the National Credit Act, 34 of 2005.8VARIATION OF CHARGES AND TERMS8.1Huge Connect may vary, in its reasonable discretion, all or any of its terms and Charges orintroduce new terms and Charges from time to time.8.2All Charges are subject to an annual tariff increase commencing 01 March of each year. Suchincreases shall not exceed the Average Consumer Price Index of South Africa (for the previous12 months) unless otherwise agreed between the Parties in writing.8.3Huge Connect may also vary the charges, terms and conditions of this Agreement, at its solediscretion, if necessitated by new legislation, statutory instruments, Government regulations orlicenses, or similar events.8.4Huge Connect shall notify Customer of any such escalation or variation in terms of Clauses 8.1,8.2 and 8.2 above, in writing.9REBATE OF CHARGES9.1Where the Service has been wholly and continuously unavailable for an uninterrupted period of18 (eighteen) Business Hours or more after a failure in the Service has been reported to HugeConnect and such failure is not as a result of:9.1.1a fault or due to negligence of/by Customer;9.1.2a fault on Customer Application;9.1.3the interruption/unavailability of 3rd Party Service(s);9.1.4Customer being in breach of any of the provisions of the Agr

1.1.1 “Agreement” - the terms and conditions as set out herein (“Master Services Agreement”), together with the Service Order(s) and any Service Schedule(s) attached hereto, in terms of which Huge Connect will deliver the Service to Customer; 1.1.2 “Authorised Person” – any person in the employ of Customer and/or a person acting on behalf of the Customer who is authorised by the .